Judge wants Vilsack testimony in Breitbart suit

5/12/14 7:42 PM EDT

Agriculture Secretary Tom Vilsack should prepare to testify in the next week or two in connection with former USDA official Shirley Sherrod's libel lawsuit over a blog post by late conservative publisher Andrew Breitbart, a federal judge said Monday.

"If I were you....I would tell Mr. Vilsack, 'Get ready'...Because he's going to have to answer questions," U.S. District Court Judge Richard Leon told Justice Department lawyer David Glass.

Leon sounded dubious when told by another lawyer that the government was likely to seek quash any subpoena Vilsack to appear at a deposition.

"Really? It's the senior government official exemption to depositions in the federal courts?" Leon asked skeptically, adding that he'd worked as a lawyer on Capitol Hill and deposed a number of Cabinet officers.

"If Mr. Glass wants to file a motion [to block Vilsack's deposition] then I'll have to rule on that," Leon said, smiling impishly as he added: "We'll see what he's got."

When Glass rose to speak for a second time at the end of the nearly-hour-long hearing (the first time the judge told him to "have a seat"), Leon said he wanted to hear if there were any cases supporting the idea that top government officials shouldn't need to testify in response to a subpoena.

"Absolutely," Glass said. "It is heavily disfavored."

"Hmmm.....Hmmm," the judge interjected as the government lawyer put forward his argument.

In a motion filed Sunday night, the Justice Department also moved formally to quash depositions for four former White House officials, including former Press Secretary Robert Gibbs and former Deputy Chief of Staff Jim Messina. That motion cites several cases indicating that courts should be cautious about intruding on the time of top federal officials.

During the same hearing Monday, a lawyer for Breitbart business partner Larry O'Connor said the White House was citing a version of executive privilege to withhold significant portions of the documents subpoenaed in the case. Attorney Mark Bailen said the White House "heavily redacted" the documents on the basis of "deliberative process privilege," a legal provision which protects government policymaking by allowing confidential deliberations.

Bailen said the volume of documents turned over Friday undercuts the White House's claim it was not involved in directing Sherrod's dismissal. "They claim they don't have anyting to do with anything in this case, yet there are 6700 pages" in the document set," the attorney said.

There was no indication at the hearing that the White House asserted the presidential communications privilege, which is often equated with executive privilege but applies only to records involving discussions with the president or among his top advisers. The government is not a defendant in the lawsuit, but has been served with subpoenas by parties on both sides.

Leon said Monday he's intent on getting Sherrod's lawsuit to trial this fall, preferably in October. He said he wanted all sides to rein in their requests for documents and that starting with Vilsack's deposition might actually help narrow the requests, since the agriculture secretary says he was the one who decided to force Sherrod to resign.

"I think they're reaching for the moon, when all they need is a couple rocks," the judge said. "This is being blown way out of proportion in terms of document production."

The judge was particularly skeptical about O'Connor's effort to seek evidence that Sherrod's dismissal may have been related to efforts to preserve Congressional support for funding to settle a longrunning lawsuit, known as the Pigford case, which alleged racial discrimination by USDA against African-American farmers.

"There were other factors at play here," Bailen said.

However, Sherrod attorney Beth Williams said O'Connor and Breitbart (who died in 2012 but whose wife has been substituted as a defendant) were trying to point fingers in an effort to divert attention from the role their publication played in damaging the former USDA state rural development director's reputation.

"The defendants want to make this about everything except what they did," Williams told Leon. "This case is about their blog post."

"I dont' see how Pigford has anything to do with this case—anything," Leon declared at one point. "Do you know what a wild goose chase is, Mr. Bailen?" the judge added, in just one of the half dozen or more times he let that metaphor fly during the hearing.

Leon did sound relieved when Bailen indicated there were no plans to try to depose President Barack Obama.

"Don't tell me Obama...." the judge said. "I'll take a pass on that one for now...Don't need to make a decision on that one."